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Wednesday, July 29, 2009

This essay was originally posted by Mario in his blog on 7 April 2009. An excellent piece by Atty Apuzzo and well worth reading again.
Re-Posted by: C.F. Kerchner, Lead Plaintiff, Kerchner v Obama & Congress, Contributor and an Editor.

Obama, the Putative President of the U.S., was Born a British Subject Governed by the British Nationality Act of 1948, and is Currently also a British Protected Person and/or a British Citizen to This Day

Assuming that Obama was born in the United States, he was not only born a dual national of the United States and Great Britain, but at present he continues to be such. Some maintain that American law on citizenship cannot be subjected to any foreign law. But such an argument does not resolve the question of Obama’s dual nationality, for each nation has the sovereign right to make its own citizenship laws and one nation cannot deny another nation that right. This point can be better understood when we consider that McCain was born in Panama to U.S. citizen parents and U.S. citizenship law declared him a U.S. citizen even though he was born in Panama and Panamanian law may have declared him a citizen of Panama. Neither Panama nor any other nation questioned the United States' right to pass a law that gave McCain U.S. citizenship by descent from his parents even though he was born in Panama. Great Britain, being a sovereign nation, has the same right as does the United States to pass such citizenship laws. Now let us examine the British law that applies to Obama and his father and which makes Obama a British citizen not only at the time of his birth in 1961 but still today.

The British Nationality Act of 1948 provides in pertinent part as follows:

"4. Subject to the provisions of this section, every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth:

Provided that a person shall not be such a citizen by virtue of this section if at the time of his birth—(a) his father possesses such immunity from suit and legal process as is accorded to an envoy of a foreign sovereign power accredited to His Majesty, and is not a citizen of the United Kingdom and Colonies; or(b) his father is an enemy alien and the birth occurs in a place then under occupation by the enemy.

5.—(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth ...."

Under the British Nationality Act of 1948, Obama's father became a British citizen under Section 4 by being born on the soil of an English Colony, Kenya. Under Section 5, when Obama was born in 1961 in Hawaii or some other place, he automatically became a British citizen by descent from his father who was a British citizen under Section 4.

Obama has deflected attention to his British citizenship by focusing the public’s attention on his former Kenyan citizenship. Notwithstanding what Obama may lead the public to believe, this British citizenship is not a type of citizenship that he has since lost. Moreover, this citizenship did not expire with Obama's 21st birthday nor is it one that had to be registered in any specified period of time.

Chapter VI, Section 87 of the Kenyan Constitution specifies that:

“1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…2. Every person who, having been born outside Kenya. [sic] is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall. [sic] if his father becomes. [sic] . . . a citizen of Kenya by virtue of subjection (1). [sic] become a citizen of Kenya on 12th December. [sic] 1963.”

Under the Kenyan Constitution of 1963, Obama’s father and Obama became citizens of Kenya. But neither Kenya’s independence from Great Britain, nor the Kenyan Constitution, nor the Kenyan Independence Act of 1963, as amended, caused Obama to lose his British citizenship with which he was born. Obama concedes that his citizenship converted from British to Kenyan but he adds that he then lost this Kenyan citizenship when he did not confirm it upon reaching the age of 21. There are no known statements from either Obama or his campaign contending that he eventually lost his British citizenship. Rather, the statements have been that his British citizenship converted to Kenyan citizenship when Kenya obtained its independence from Great Britain in 1963 and that he then lost Kenyan citizenship under the Kenyan constitution and laws when he did not renounce U.S. citizenship at age 21. But since Obama never lost his British citizenship, it does not matter that Obama may have lost his Kenyan citizenship as he contends.

Let us now see how Obama did not lose his British citizenship. The Kenyan Constitution which came into effect in 1963 at Article 97 provides the following:

"97. Dual citizenship1. A person who, upon the attainment of the age of twenty-one years, is a citizen of Kenya and also a citizen of some country other than Kenya shall, subject to subsection (7), cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was born outside Kenya made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament."

While the Kenyan Constitution prohibits dual citizenship for adults, it allows dual citizenship for children. Kenya’s Constitution does, however, specify that at age 21, Kenyan citizens who possess citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship, swear an oath of allegiance to Kenya, and in the case of a person who was born outside Kenya made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament. It may be true that Obama did not take any action to preserve his Kenyan citizenship as was required by the Kenyan constitution. But there is no evidence that Obama ever renounced his British citizenship which he originally acquired at his birth under Section 5 of the British Nationality Act of 1948 and which he did not lose under the Kenyan Independence Act of 1963, as amended. Whatever his father may have done regarding his Kenyan and/or British citizenship did not affect Obama’s British citizenship with which Obama was born. Hence, under the Kenyan Constitution, Obama presumably lost his Kenyan citizenship by not renouncing his U.S. (assuming he was born in the U.S.) and British citizenships, by not taking an oath of allegiance to Kenya, and by not registering his declaration to take up residence in Kenya. But under British law, he did not lose his British citizenship because he never renounced that citizenship.

The fact that Obama still has British citizenship is further supported by the following:

"Under United Kingdom law as it has been since the British Nationality Act, 1948, the acquisition of another nationality by a citizen of the United Kingdom and Colonies, of whatever age, makes no difference whatever to his status as a citizen of the United Kingdom and Colonies, and, therefore, he remains a British subject.

Moreover, it is not possible, under United Kingdom law, for the nationality of a child who is a citizen of the United Kingdom and Colonies to be changed by the decision of his parents. Only the child, when he reaches the age of 21, can renounce his citizenship of the United Kingdom and Colonies if he is then in possession of another nationality, but during the child's minority neither the child nor his parents can do anything to forfeit his birthright of British nationality."
Children Bill [Lords], HC Deb 27 June 1958 vol 590 cc743-830.

"It is now the law that all persons born in the United Kingdom or its Colonies, or in countries which were Colonies at the time when they were born, have British nationality whether they are legitimate or illegitimate. . . .

Also, it is part of our law that children of a British male born abroad can have British nationality."
British Nationality, HC Deb 16 July 1963 vol 681 cc341-3.

Additionally, if one examines the British Nationality Act of 1981, as amended, there is nothing there which shows that Obama, once having the British citizenship that he acquired by descent from his father at the time of his birth, automatically lost it at age 21. On the other hand, the act contains provisions concerning "declaration of renunciation" at Section 10, 12, and 13. Not that doing so would make Obama an Article II “natural born Citizen,” there is no evidence that Obama ever filed any "declaration of renunciation" of his British citizenship.

What does this mean? Under the Kenyan Constitution, Obama is presumably no longer a Kenyan citizen because he did not renounce at age 21 his British citizenship and his U.S. citizenship (assuming he was born in the U.S.). Obama is still however a British citizen not only under English common law (in the words of Coke and Blackstone, a natural-born subject of the United Kingdom) but also under British citizenship statutes. Neither Kenya's 1963 constitution nor any statute erased the consequences of the British common law and nationality statutes that were in effect at the time of Obama’s and his father’s birth. Obama’s continuing British citizenship is further confirmed by English law which provides that persons born in countries which were Colonies at the time when they were born are still British citizens. Hence, Obama continues to be a British citizen despite Kenya’s independence and new constitution.

This all leads to the question of how can Obama be an Article II “natural born Citizen” if he was at birth both a U.S. citizen (assuming he was born in the U.S.) and a British citizen which alone disqualifies him from having that status? But to make matters worse, Obama continues to be a British citizen at a time that he is currently the President of the United States. Can we reasonably conclude that the Founding Fathers, who had just fought a war with Great Britain and who did not want a foreigner to occupy the Office of President, would have allowed a British citizen born after 1789, who carries that status not only from birth but also to the time he occupies the Office, to be President of the United States and Commander in Chief of its Military? Another question is how can a would-be President and Commander in Chief of the Military with current dual citizenship obtain a security clearance which he should have to access classified U.S. government information needed by him to carry out the sensitive functions of that Office?

39
comments:

Anonymous
said...

Something that may be of assistance --- probably not much assistance as far as an official argument, but at least it helps to historically make the point --- is this quote from Madison in the Virginia ratifying convention of the Constitution.

"It is to be presumed that, in transactions with foreign countries, those who regulate them will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country?"Quoted from: Madison. "Thursday, June 19, 1788" (misprinted by Jonathan Elliot as "Wednesday, June 18, 1788"). Jonathan Elliot. "The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution." The Debates in the Several State Conventions on the Adoption of the Federal Constitution. Book compiled by Jon Roland of The Constitution Society, September 5, 1995 at http://www.constitution.org/elliot.htm Updated October 21, 2001. Specific section which was cited accessed July 29, 2009. http://www.constitution.org/rc/rat_va_16.htm

Madison's point reflects the mindset that a government official involved in foreign affairs will obviously seek the interests of his own country more than that of another country, and that in fact, they will seek their own country's interests to the fullest possible extent. This gives us good reason to believe that the founders intended to exclude dual citizens (like Obama) from the 'natural born' category, seeing as a dual citizen may well have conflicting national interests, rendering such a person incapable of fully and properly representing the foreign interests of the United States. In Obama's own case, he had foreign citizenship until he was an adult, by which time he would certainty have had the chance to intellectually-develop at least something of a national attachment.

Thanks for answering my questions last night. I have a little bit of follow up, a link, and some more questions so we can clarify.

json,

I asked Mario this question last night. It seems to be one of the problems with the law. Mario, of course I don't want anybody that lies about his father to be president, but that doesn't mean I can argue that legally he should show. Still, I actually don't think this is the case. I think he's got one of these funky birth certificates, which brings up my comments and question for now:

Fukino clearly cannot make the claim that he is a natural born citizen. The question there is if she was purposefully staking that claim or if she was using the traditional understanding of a person being born in the US to be natural born (however uninformed that is). Still, she is saying that he is born in Hawaii (seemingly unequivocally). Mario, I’m keeping my mind open, though, so allow me to continue.

Is your argument that even though she said this, it could be her interpretation of a much more complicated issue? It seems to me that this clearly indicates that the birth certificate is one that has details which hint at registration but incomplete knowledge (ie a hospital) of the birth — otherwise they’d just release the document. Thus, would your argument be that by not showing DEFINITIVELY that he is born and thus qualified under Article 2, you can claim that he is not?

My response to that would be that I would think that you’d have to prove otherwise aka Smoking Gun even if there is a possibility that his family or affidavit signers lied. Right?

Finally, I also thought about this: My response always had been that perhaps Obama can tell Fukino what to selectively announce, since he is the consenting party. Therefore, he told her she could say that he was born in Hawaii. Indeed, that would make the NBC claim even stranger. However, I’m not sure that that is legal. I surely don’t think it’s reasonable.

Might she be forced to give up the rest of the documentation because she implicated the whole thing but only half way?

Mario -- Your last comment about Obama obtaining a security clearance; that was one to my anal obsessions; I could not understand how he could ever get through a security clearance investigation. As Charles can tell you they a exhaustive and time consuming just to get to square one; I have gone through the process and can tell the information you need to provide to get to square one would have automatically disqualifed Obama before the investigations would have commenced. My inquiry to one of my senators got the following response: once the president is confirmed there is no security clearance required by law; that the people have spoken and therefore he is automatically qualified to see confidential, secret, top secret, crypto, etc because of his office. My response was how could this be when peopled who work for him are required to obtain a security clearance, no reply back. This in another pass the buck; security clearance investigation can take years, again, as Charles can verify and that is if your ducks are all in a row and you have a fairly clean record of residency, etc., in Obama's case because he is all over the place and no real record it would take years.

Then you get into his passport issue, he never had a US Passport until he became a US Senator, and those are diplomatic passports and are issue on a needs basis with no birth certificate or other ID required; and usually issued at point of time needed for foriegn travel and a congressional person. So much for our State Department being on top of it. Interesting and stupid.

That's another reason we need our country back.

August 3, 2009 it very important to all of us who swore an oath to protect and defend the Constitution of the United States of America, but also important to the US Citizens who are unaware of what they could lose.

Dr. Fukinos July 27 statement is actually very clever. Key portions are that she has:

"... seen the original vital records maintained on file by theHawai'i State Department of Health verifying Barack Hussein Obama was born in Hawai'i and is a natural-born American citizen,"

The term "vital records" could as easily as not be the infamous COLB (an abbreviated form of the long form BC). If so, that certainly wouldn't dgo very far toward any sort of rigorous demonstration about his birts - a good bit more is needed. As Mario was trying to tell you, no one knows what the good Dr. was using as her source document and remember there are several different types of BCs in HI - some of which are rather worthless for purposes of definitive proof.

Also, her termionologh is odd as she called out "natural-born citizen" rather than the unhyphenated phrase used in the Constitution. The hypnen actually changes the meaning of the term - and particularly in this instance. I think she's more likely saying something like "natigve born citizen" but in any event if she's trying to pretend that she means "natural born citizen" (no hyphen) then that is a determination that neither Dr. Fukino nor you, nor I can make with any definition as it is a legal determination of a term of art in the Constitution which only the Federal District Court or abovew can make for any legal effect.

I agree. Dr. Fukino referring to Obama as a "Natural Born" American Citizen sound a little too contrived, given the intense buzz that Obama is not a "Natural Born" citizen. It is almost as if Dr. Fukino may been told what to say. A more natural statement from a DOH offical would have been to simply state Obama is US or American Citizen. In any event, why was is it necessary for Fukino to even point that out if Obama was born in Hawaii.

The average American probably believes that the President must obtain a security clearance. They figure how could the FBI, CIA, Immigration, and all the rest allow a person to be President who was not born in USA. Hence, they believe that there is no way that we can have a President who was not born in the USA. The passport misunderstanding (he could not have gotten his passports unless he was born in the USA) adds further fuel to the error.

The other error is in not knowing what an Article II "natural born Citizen" is. Being born in America is necessary but not sufficient to meet that test, for one must also be born to parents who are U.S. citizens.

So many simply assume that the 14th Amendment or some Congressional Act makes Article II "natural born Citizens." This is error because that amendment and Acts, by their exact language, only make "citizens" (born or naturalized). Remember, the Founders grandfathered "citizens" to be President. Hence, after the Constitution was adopted, to be a "citizen" was not sufficient to be President. After 1789, one had to be a "natural born Citizen" to be President.

The law of nations, as codified by Vattel, became part of our common law and defined what a "citizen" was. These were the members of a society. The persons who created the United States through the revolutionary war become the first citizens. These included persons born on colonial soil and immigrants. The law of nations also defined what a "natural born citizen" was. These were children born in the country to parents who were citizens. Our U.S. Supreme Court has in several cases confirmed this common law definition of "citizen" and "natural born Citizen." Hence, the formula is thus: first a citizen (by birth or naturalization); then two citizens procreate a citizen on U.S. soil who under the common law definition is a "natural born Citizen" because of the joint citizenship of his/her parents. This is unity of citizenship in the child (jus soli and jus sanguinis united) at the time of birth which creates a "natural born Citizen." Obama, by his own admissions regarding his father's and his British citizenship at the time of Obama's birth, fails the "natural born Citizen" test and is therefore not eligible to be President.

Children being born overseas to two US citizens on a military base is not an uncommon occurrence. I had heard years ago that the senate was thinking about making them eligible to run for president but had actually not ever passed it as it was in violation to the United States of America Constitution. Then all of a sudden it was hush-hush with McCain and a secret vote to declare him Constitutionally Qualified. There is some weird stuff going on behind the scenes and these senators have taken undue liberties in violating the Constitution of the United States of America. They need to be held accountable for their crimes against "We the People". They remind me of hitler and the third reich.

A candidate running for the office of President has to tell the public who his or her mother and father are. That is required because to qualifiy for the office, that person under Article II must be a "natural born Citizen." That means born in the country to parents who are citizens. Hence, we have to know who the parents are so that we can confirm that they were citizens when the child was born.

Additionally and apart from the Article II requirement, we also need to know who the parents are so that we can learn more about that candidate. If someone does not want the public to know who his or her parents are, then he or she has no business running for the Office of President.

Fukino's comment does not add anything to our quest for the truth. While Obama might have a registered birth in Hawaii, we simply do not know whether that registration conveys the truth. Under normal circumstances which have prevailed with the so many other recent Presidents, we would most likely just accept the registration and that would be the end of the issue. But we have seen much contradictory evidence regarding Obama's place of birth. We therefore need to go beyond the mere registration and see what evidence exists to corroborate the alleged Hawaiian birth.

Additionally, Fukino has no authority, competence, or expertise to be telling the world that Obama is a "natural born Citizen." Whether Obama is an Article II "natural born Citizen" is a legal and constitutional question that should have been investigated by Congress when the issue was raised just like they investigated McCain's "natural born Citizen" status. Now only a Court can answer that question.

On the burden of proof, Obama wants to be President. Under Article II, he has to conclusively prove that he is a "natural born Citizen." To date, he has refused to meet his burden of proof and rather has played a little game with the courts, Congress, and the American public.

On Obama's obligation to disclose, Obama was running for President. He could not reasonably hide behind the privacy laws to prevent the American people from learning who and what he was. Information about himself was critical to the vetting process and the public simply should not have been denied that information. Our society should not have allowed his privacy rights to trump his constitutional obligation to show he is a "natural born Citizen."

The following is Obahmadinejihad's failed attempt to define "Natural Born Citizen".

S. 2678

To clarify the law and ensure that children born to United States citizens while serving overseas in the military are eligible to become President.

IN THE SENATE OF THE UNITED STATESFEBRUARY 28, 2008

Mrs. MCCASKILL (for herself, Mr. OBAMA, Mrs. CLINTON, Mr. COBURN, and Mr. MENENDEZ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To clarify the law and ensure that children born to United States citizens while serving overseas in the military are eligible to become President. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Children of Military Families Natural Born Citizen Act’’.

SEC. 2. DEFINITION OF ‘‘NATURAL BORN CITIZEN’’.

Congress finds and declares that the term ‘‘natural born Citizen’’ in article II, section 1, clause 5 of the Constitution of the United States shall include: ‘‘Any person born to any citizen of the United States while serving in the active or reserve components of the United States Armed Forces’’.

FYI- part of a facebook exchange I have been having with Sen. John Cornyn (R) TX

here he refers to a suit most likely Berg's, in reply to my earlier question.....

John Cornyn: I believe a lawsuit on this subject has been dismissed.

Stephen J Cyrier: Thank you for your reply Senator regarding my questioning of Obama's eligibility. While it is true a suit was dismissed (unfairly) that does not preclude the Senate Judiciary Committee from launching a Senate Hearing on the matter, or conducting a Senate Investigation into this matter, which millions of Americans, including our military are questioning.

"Under normal circumstances which have prevailed with the so many other recent Presidents, we would most likely just accept the registration and that would be the end of the issue."

Well said. It is very strange to hold out so long, indeed.

I guess ultimately the question is, "Are we going to get to see it?"

I just think that it's a shame that one can hide behind so many legalisms. The law is generally very good but it seems in America these days common sense has really fallen out of the equation --- whether it is a suit, costs, payments, punishments, or the president.

I wish you the best of luck and will continue to support, but I fear the issue has reached a zenith. I think you guys are the last hope. Boy would I love discovery if nothing else than to just piss this guy off for all he has been trying to hide.

Can we get the passport travel details of Stanley Ann Dunham, BOH jr's mother. Wouldn't her travel port of entry details shed light as to Obama's birthplace, and as to when he returned to Hawaii? If her passport documentation places her in Kenya Aug.4, 1961, that would dispell Obama's birthdate further destroying the COLB authenticity.

You see the problem with pelosi's statement "if you don't like the fact that we are ignoring you, vote us out of office" is that they may very well just be controlling the outcomes of these elections. Since they may just very well be controlling the outcomes of these elections through voter fraud and whatnot it is useless to try to vote them out of office as they are laughing at us through the "portal". Conclusion: they are a bunch of hardened criminals and that is just too bad as the country spirals merrily downward

What are the chances that Fukino's use of natural-born instead of "Natural Born" was just tricky word-play (and a major CYA) that she believes will allow her to say that she was just indicating that he was not delivered via C-section. People say and do the strangest things under stress. Oh, what a tangled web...

I was just over at Dr. Conspiracy's site. I found the following there written by the good doctor:

"When looking at Greshak, and Apuzzo, and Taitz and Berg, and P. A. Madison, and the rest of that crowd, I am reminded of this phrase from the Bible:

(Mat 6:7b NRSV) “…for they think that they will be heard because of their many words."

He then continues:

"What is interesting is to compare Emerich de Vattel with Edward Lord Coke. Both derived concepts of citizenship from natural law, but arrived at different conclusions. De Vattel believed nature made allegiance something inherited from one’s father (as it was in Swiss society) where Coke (Calvin’s Case 1608) said that allegiance was created when one was born under the protection of one’s lord. De Vattel’s analysis formed the basis of Swiss common law, including the rule of the 13 Swiss colonies of Swiss North America. Coke’s analysis formed the basis of British common law for nearly 300 years, including the rule of the 13 British colonies of British North America."

I responded to the good doctor as follows:

"I see you have gotten religious lately.

I also see that you are fond of Coke and I of Vattel. Could you provide me one case or more wherein the Court defines what a “natural born Citizen” (not just a “citizen”) is by referring to Coke and his definitions (or any other English common law authority). I do have several cases in which the Court does refer to and cites Vattel directly and his definition of what “natives” or “indigenes” or “natural born citizens” (all three distinguished from an ordinary “citizen”) are or just gives his definition thereof in defining those words. I have cited some of these cases in my opposition brief to Obamas’s and Congress’s motion to dismiss my complaint/petition.

I do hope that you will take me up on my challenge.

Mario Apuzzo, Esq."

I also offer anyone on this blog to help the good doctor find any such case. Let me know of your findings. Happy hunting.

Mr.Apuzzo: You're making waves into the obot concern realm. Here, they've answered a question about Obama's British citizenship with an obfuscation. It's good they're worried and trying to lie to prevent damages, it's bad that they keep twisting the truth around and most of America does not know the difference between citizen and natural born citizen to save their life...

1) Under the British Nationality Act (BNA) of 1948, Pres.Obama's father became a United Kingdom and Colonies (UKC) citizen because he was born in Kenya, a British colony.2) When he was born on Aug.4, 1961, Pres.Obama became a UKC citizen through his father, as stated in the BNA. This meant he held dual citizenship; American and UKC.3) On Dec.12, 1963, Kenya became independent of the UK. Consequently, under Article 87 of the Kenyan Constitution, people who were UKC citizens ceased being UKC citizens and became Kenyan citizens. This meant that Obama now held American and Kenyan citizenship.4) According to Article 97 of the Kenyan Constitution, dual citizenship cannot continue after the age of 21. Consequently, at the age of 21, Obama would "cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was born outside Kenya. made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament."5) Since he didn't renounce his American citizenship, take the Kenyan oath of allegiance, and register his intentions for a Kenyan residence, Obama's Kenyan citizenship expired on Aug. 4, 1982.6) On that date, Obama held only American citizenship.

"3) On Dec.12, 1963, Kenya became independent of the UK. Consequently, under Article 87 of the Kenyan Constitution, people who were UKC citizens ceased being UKC citizens and became Kenyan citizens. This meant that Obama now held American and Kenyan citizenship."

One sovereign nation cannot take away from a person his or her citizenship that another sovereign nation granted to him or her. The laws of Kenya cannot take away English citizenship that was granted by the British Nationality Act of 1948. On the other hand, the Kenyan Independence Act 1963 at Sections 2 and 3 (a British law) did take away British citizenship from those gaining Kenyan citizenship and not qualifying for retention of British citizenship. Obama probably did not qualify for retention. But the British Nationality Act of 1981, at Section 9, repealed Section 2 and 3 of the Kenyan Independence Act 1963. Hence, Obama got his British citizenship back.

Also, remember that under English common law, "once a British subject always a British subject."

Just to clarify that the statement was made by an Obot trying to say that Barack lost both Kenyan and British citizenship...I don't agree with that, just wanted to clarify. Thanks for your response.But it is good that they're worried enough about it to forumulate a good lie!Michael Medved show he just said all 14th amendment citizens are natural born citizens and was very rude to a caller talking about this issue that you wrote about.

When he was born, he was a citizen of the UK and colonies (CUKC) through descent from his father. When Kenya became independent in 1963, he lost this status. This is not due to Kenyan law of the Kenyan constitution (Mr Apuzzo is correct to say that Kenyan law has no business taking away Obama's CUKC staus). The place to look for this is the Kenya Independence Act (KIA) passed by the UK parliament, which withdraws CUKC status from most people who acquired Kenyan citizenship upon Kenyan independence.

Now, the British Nationality Act of 1981 (BNA 1981) repeals the sections of the KIA having to do with CUKC. It would seem to some that this restores Obama's CUKC. However, this is not the case for the following reasons:

(1) BNA 1981 abolishes the category of CUKC for everybody and replaces that by new categories of British Nationality (British Citizen, British Overseas Citizen, etc).

(2) Whether one gets one of the new forms of British nationality introduced by BNA 1981 is dependent on one having CUKC status immediately before the commencement of BNA 1981. Therefore Obama would have one of the new forms of British Citizenship only if he held CUKC prior to BNA 1981's implementation and the repeal of the citizenship sections of KIA. This he did not have, because he lost CUKC based on the pre-repeal version of the KIA.

First, I want to make it clear that we must look to Obama's citizenship status at the moment of birth to determine whether he is an Article II "natural born Citizen." The British Nationality Act 1948 granted to Obama's father Citizenship of the United Kingdom and Colonies (CUKC) status when he was born in then-English colony, Kenya. That Act also granted to Obama the same CUKC status by way of descent from his father. Hence, when Obama was born, his father was a British subject/citizen and not a U.S. citizen and he himself was also born a British subject/citizen, regardless of whether Obama was born in the United States or any other country of the world. As such, he was born subject to a foreign power because his father was not a U.S. citizen and because he himself was a British subject/citizen. Being born under such birth circumstances, Obama is not and cannot be an Article II "natural born Citizen."

The historical record shows that the Founding Fathers would not have allowed a foreigner to be the supreme leader of the military, the leader of the United States who is expected to make immediate life and death war decisions in the international arena. The historical record also shows that they would have perceived someone who is born subject to a foreign power to be such a foreigner. This is not even to mention the problems that can arise given the President's express and implied constitutional powers over international affairs (e.g. negotiating treaties, providing input and having influence over the proposal of the military budget and the development of military defense systems, appointing ambassadors, doling out international financial aid, and waging war on international terrorism, to name just a few) and the conflicts that can develop in these areas, whether real or imagined, if the President does not have sole and absolute allegiance and loyalty to the United States.

Second, to fully appreciate the meaning of the "natural born Citizen" clause but not as a necessary component thereof, I believe that it is also important to examine Obama's current citizenship status. Hence, in April 2009 I published my article which raises the question of whether today Obama is still a British citizen. Kenya achieved independence from Great Britain in 1963. Sec. 2 and 3 of the Kenya Independence Act 1963 (KIA 1963), a British law, removed from those acquiring Kenyan citizenship under the new Kenyan Constitution of 1963 their CUKC status that they had acquired under the BNA 1948, unless they qualified to keep that British citizenship status under one of Act's retention provisions. Based on what is known publicly, it does not appear as though either his father or Obama qualified to keep his CUKC under any of the Act's retention provision and so they would have lost that status but Obama would have continued as a citizen of Kenya. Under the Kenyan Constitution of 1963, Obama would have kept his Kenyan citizenship until age 21. Under Chapter 170-Kenyan Citizenship Act, he was able to extend his hold of Kenyan citizenship until age 23, which means that he kept that citizenship until August 4, 1984.

The British Nationality Act 1981 (BNA 1981) repealed the BNA 1948 and Sec. 2 and 3 of the KIA 1963. The BNA 1981 grants to those who held CUKC status "immediately" before "commencement" of the act, among other forms of citizenship, British Overseas Citizenship (BOC). The question is does the BNA 1981's repeal of Sec. 2 and 3 of the KIA 1963 have any effect on Obama's former British citizenship status? Does the repeal of Sec. 2 and 3 restore his old CUKC status? There is an argument that the repeal would not have restored Obama’s CUKC status because Obama did not have CUKC status "immediately" before commencement, for he had presumably lost that CUKC in 1963. But there is no automatic answer to this question. To answer this question properly, we must at least know what the intent of Parliament was in repealing Sec. 2 and 3. We must know why did Parliament use the word "immediately" before commencement when referring to former CUKC status? Why did Parliament care to repeal Sec. 2 and 3 when it was at the same time repealing the BNA 1948? What would have happened if Parliament only repealed the BNA 1948 and not also Sec. 2 and 3 of the KIA 1963? What did Parliament want to achieve by the simultaneous repeals of BNA 1948 and Sec. 2 and 3 of KIA 1963? Does repeal of Sec. 2 and 3 "immediately" restore prior CUCK status? If it does, then Obama would have CUKC status "immediately" prior to commencement and would be eligible for BOC.

I have not seen any postings by anyone providing this information. Have you found anything which shows what Parliament's intent in this regard was? If you have, kindly provide it for me and to those who are following this interesting issue so that we can all further examine the problem.

"The question is does the BNA 1981's repeal of Sec. 2 and 3 of the KIA 1963 have any effect on Obama's former British citizenship status? Does the repeal of Sec. 2 and 3 restore his old CUKC status?"

I agree that BNA 1981's repeal of the citizenship parts of KIA is not clear about this point. However, since BNA 1981 also abolishes CUKC status for everybody [BNA 1981, Schedule 9 abolishes BNA 1948 which created CUKC in the first place], it does not matter. At most, Obama's CUKC status was restored by BNA 1981 and simultaneously abolished.

The repeal of the citizenship provisions of the KIA is part of BNA 1981 [BNA 1981, Schedule 9]. Therefore, even if Obama's CUKC status was restored, it would not have been before the commencement of BNA 1981 and so Obama would not be entitled to any of the new forms of British Nationality created by BNA 1981. [BNA 1981, Articles 11, 13 and 26].

As to the intent of parliament, I think that is pretty clear (although perhaps not in any explicit written form). The UK certainly has no desire to grant British nationality to all citizens of independent countries that were formerly part of the Britsh Empire. BNA 1981 repeals the citizenship provisions of almost every independence act (not just for Kenya), but that is because those provisions refer the defunct CUKC category. If you look at citizens of former colonies of Britain born before the implementation of BNA 1981, you certainly don't see them carrying British passports. In fact if you look at the following link - http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2gensec/independence?view=Binary - you will find a form letter the UK government uses when former CUKCs who have lost that status through independence try to apply for a British passport.

By the way, I am not making any comment about the argument about Obama's CUKC at birth affecting his "natural born citizen" status of the US. That is a separate thing. I am just pointing out the Obama does not qualify for any form of British nationality now.

http://hansard.millbanksystems.com/commons/1984/dec/05/business-of-the-house#S6CV0069P0_19841205_HOC_520 This debate concerns the creation of yet another category of British nationality for Hong Kong, but BNA 1981 is brought up and you can see that parliament if anything wanted to reduce its obligations to former citizens of the empire and limit/reduce the numbers nationals entitled to travel on British passports and receive British consular protection (even if they have no right to live or work in the UK).

http://hansard.millbanksystems.com/lords/1981/oct/06/british-nationality-bill#S5LV0424P0_19811006_HOL_313 This concerns the inconvenience faced by non UK-born CUKCs living in the UK who lost their status because of independence of their homeland - note there is no mention of restoring their CUKCs automatically - merely a request to make the paperwork required to retain UK citizenship easier and less costly.

I follow your logic quite well. But your reasoning still does not answer the question of why did Parliament through the BNA 1981 repeal both the BNA 1948 (producing a negative) and Sec. 2 and 3 of the KIA 1963 (producing a positive). Why the double kill with contradictory results? It would be great if anyone could find some legislative history which could shed some light on this question.

I have written that even if one does not technically have British citizenship, one can apply to the British Home Secretary to be allowed to resume it arguing that the circumstances warrant it. Does Obama qualify for this application?

If they repealed BNA 1948 but not KIA (and all the other independence acts), you will have legislation in KIA referring to a form of nationality (CUKC) that does not exist anymore. The parts of KIA that refer to CUKC only make sense if BNA 1948 is still in effect.

CUKC was introduced by BNA 1948. Prior to that, the UK, its colonies, independent dominions like Canada, Australia, etc, shared a common "British subject" status. (As a side note, BNA 1981 redefined "British subject" so this means something else today - see below).

It doesn't help that British Nationality Law is so horrendously complex. As far as I can tell, there are six current classes of British nationality (BC, BOTC, BOC, BS, BPP, BN(O)), two defunct classes (CUKC, BDTC), two associated classes (Commonwealth and EU citizenship). To make it worse, classes were renamed by BNA 1981 in confusing ways. For example, "British subject" prior to BNA 1981 is now "Commonwealth citizen", and "British subject without citizenship" prior to BNA 1981 is now "British subject".

"I have written that even if one does not technically have British citizenship, one can apply to the British Home Secretary to be allowed to resume it arguing that the circumstances warrant it. Does Obama qualify for this application?"

Not for the following reasons:

(1) This provision does not apply if you have lost CUKC through independence. (The UK doesn't want an immigration problem - imagining everyone in a former colony trying to apply for resumption of citizenship). It refers to those who have renounced British Citizenship (usually to take up citizenship in a country that prohibits dual citizenship).

(2) Resumption of British nationality is only available to British Citizens. Obama would at best be a British Overseas Citizen and that category is not entitled to resumption.

In any case, you are not considered a British Citizen until your application for resumption has been approved (it is subject to background checks and is not automatically approved). So Obama would still not be British now.

I respect your reasoning. But still, is that what Parliament intended? What evidence exists regarding their intent? Once they killed CUKC with BNA 1981, was it really necessary to also kill Sec. 2 and 3 of the KIA 1963, especially when killing Sec. 2 and 3 is only adding to the specter of reviving CUKC?

Following the logic of your argument, can you just imagine if Congress intending to repeal a certain law had to scour the all the books to find and repeal every clause in every other statute that may exist simply because that clause made some type of reference to the law now being repealed, even if the clause was not in any way contradictory to Congress's current purpose in repealing the subject statute and even complimentary to it.

Also, do you think that Obama could apply with any chance of success to the British Home Office to have his British citzenship restored?

"I respect your reasoning. But still, is that what Parliament intended? What evidence exists regarding their intent? Once they killed CUKC with BNA 1981, was it really necessary to also kill Sec. 2 and 3 of the KIA 1963, especially when killing Sec. 2 and 3 is only adding to the specter of reviving CUKC?"

Based on how BNA 1981 has been implemented, I would conclude that the intention was not to revive CUKC. I posted a link earlier to the standard form letter the UK government uses to deny British passport applications made by such former CUKCs. Enough time has passed since BNA 1981 for us to conclude that if the implementation was not what parliament intended, then parliament would have passed some sort of clarification/amendment by now. Also the trend in British Nationality Law since 1948 has been to reduce Britain's obligation to those who might claim to be its nationals. Furthermore, BNA 1981 abolishes CUKC - it is hard to imagine that Parliament's intent in the same Act was to both revive and abolish CUKC. I know none of this is hard evidence, but this is probably the only way I can think of to deduce Parliament's intent.

"Following the logic of your argument, can you just imagine if Congress intending to repeal a certain law had to scour the all the books to find and repeal every clause in every other statute that may exist simply because that clause made some type of reference to the law now being repealed, even if the clause was not in any way contradictory to Congress's current purpose in repealing the subject statute and even complimentary to it."

True. I don't know what the British legal conventions are, and what the consequences would have been if KIA had not been repealed and there are all these references to defunct citizenships left in the law. My guess is that there isn't a legal requirement to go through the whole body of law and find every bit that needs to be changed, but that they were just trying to be as complete as possible. For example, the British lawmakers could have just said in BNA 1981 something like "the provisions of this Act overrides previous acts" and not bother to repeal anything, including BNA 1948. But clearly that was not their approach.

I just took a closer look at the original (pre-repeal) version of the Kenya Independence Act. Section 2 (the section that includes the provision for loss of CUKC), starts off "On and after the appointed day, the British Nationality Acts 1948 and 1958 shall have effect as if ..."I don't know what the consequences would have been if this section was not repealed - there would have been a reference to a defunct Act. Also, most of the clauses in Sections 2 and 3 of the KIA (the repealed sections) are about the retention of CUKC. These clauses would all have been contradictory (and not complementary) to BNA 1981, which abolished CUKC. I suppose they could have repealed all the contradictory clauses and left in the one or two clauses that talked about the loss of CUKC - but I can't imagine how that would have worked with a preamble referring to a defunct BNA 1948.

I guess you were not able to find any hard evidence of Parliament's intent for repeaing Sec. 2 and 3 of the KIA 1963.

Also, you state: "Furthermore, BNA 1981 abolishes CUKC - it is hard to imagine that Parliament's intent in the same Act was to both revive and abolish CUKC."

You misstate my position on the intent of BNA 1981. I never said that Parliament through the BNA 1981 also meant to revive CUKC. On the other hand, what BNA 1981 did do is replace CUKC with 3 separate citizenships, one of which is British Overseas Citizenship (BOC). Hence, there is no problem with Obama simply claiming that because Sec. 2 and 3of the KIA 1963 have been repealed, there exists no law denying him his birthright CUKC status which BNA 1981 converted to BOC.

Another interesting issue to explore is this. Obama was born a British subject (a natural born subject) under the English common law and as such he acquired natural and perpetual allegiance to the Crown at the time of birth. He is what Sir Edward Coke would call a postnati (born a "natural born subject" by descent from his father after the British colonial conquest of Kenya and prior to its independence). Let us assume that his birthright British citizenship therefore has a basis in the English Constitution. Let us also assume that Obama applies to the British Home Secretary to regain his BOC. Under these circumstances, does the Home Secretary and/or Parliament have the constitutional authority to deny him his birthright British citizenship? I would like to have your thoughts on this very interesting issue.

No, I couldn't find hard evidence. I think the best evidence is how BNA 1981 was implemented (which is to deny British passport applications to former CUKCs) and the lack of any objection from British parliament implying that the implementation was what they intended.

BNA 1981 is pretty clear that the acquisition of BOC status is dependent on one having CUKC before the commencement of BNA 1981 (which took place on Jan 1 1983). Obama lost his CUKC due to the original (pre-repeal) KIA, and that is the version that needs to be relied on because of the clear language in BNA 1981 referring to one's status prior to the commencement of BNA 981. In this sense, the pre-repeal version of KIA is still important because that determines one's status prior to BNA 1981, which in turn decides whether one gets any of the new categories of British nationality.

This is actually quite typical of British Nationality Law. In spite of the repeals, the laws are normally written in such a way that you have to end up consulting the pre-repeal versions to decide whether you qualify for a particular category of British nationality. This is even true say for someone born in the UK between 1948 and 1981. He/she would have been a CUKC at birth. Even though BNA 1948 which granted him/her this status has now been repealed by BNA 1981, one still needs to consult it to figure out his/her status prior to BNA 1981 to conclude that he/she qualifies for the new category of "British Citizenship".

Your point on birthright citizenship is a great deal more complex. Unlike the United States, Britain did not have a notion of citizenship until BNA 1948. Prior to that everyone, including people from independent or self-governing countries like Canada, shared a common status of "British subject", which was renamed "Commonwealth Citizen" by BNA 1981. The UK also does not have a constitution, so it is very hard to make a case about whether British nationality is an inalienable right or not. The independence laws passed by the UK have almost always stripped people of their CUKC status. That might sound like it goes against some constitution principle from an American perspective, but unfortunately there is no constitution to rely on. This does mean British Parliament does have some quite extraordinary powers. This is a side topic, but Tony Blair's government made huge changes to the House of Lords that would have in almost all other countries required major constitutional amendments. But because the UK does not have a constitution, it was sufficient for Parliament under the leadership of Tony Blair to pass laws effecting the changes he desired. So the answer to your question in all likelihood is yes, the Home Secretary or Parliament does have the authority to deny someone citizenship, although I wouldn't technically call it "constitutional authority" because of the lack of a constitution.

(As yet another side note - I am not as familiar about this topic as British Nationality Law, but I believe that when the Philippines became independent, the US did pass laws to withdraw US citizenship from people connected to the Philippines. So the UK independence laws are probably not as unusual as they might initially seem.)

The federal courts and judges are committing treason to the Constitution by not taking jurisdiction and getting to the merits in the various cases before them regarding the Article II eligibility clause question for Obama.

It is worth keeping in mind the words of U.S. Supreme Court Chief Justice John Marshall when he wrote in Cohens v. Virginia 19 US 264 (1821):

"It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one."

The Judge in the Kerchner v Obama & Congress lawsuit and the Judges in the other cases should simply read the words of U.S. Supreme Court Chief Justice Marshall from the past and take jurisdiction of the constitutional question of the Article II eligibility clause in the Constitution and proceed to a fact finding hearing and trial on the merits to see if Obama is Constitutionally eligible or not. I say Obama is NOT eligible. But we need the federal courts to take the cases and get a SCOTUS ruling to settle this.

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